NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as
formal revision before publication in the New Hampshire Reports. Readers are requested to
notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New
Hampshire 03301, of any editorial errors in order that corrections may be made before the
opinion goes to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the
morning of their release. The direct address of the court's home page is:
http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 2002-297

THE STATE OF NEW HAMPSHIRE

v.

Gregg Hull

Argued: May 8, 2003

Opinion Issued: July 21, 2003

Peter W. Heed, attorney general (Laura E. B. Lombardi, assistant attorney
general, on the brief and orally), for the State.

Robert J. Moses, of Amherst, by brief and orally, for the defendant.

NADEAU, J. The defendant, Gregg Hull, appeals his convictions for driving under the
influence of liquor (DUI), third offense, see RSA 265:82 (Supp. 2002); RSA
265:82-b, II(b) (Supp. 2002), and felony reckless conduct, see RSA 631:3 (1996),
following a jury trial in the Superior Court (Hicks, J.). On appeal, he argues that
the trial court erred by: (1) denying his motion inlimine to exclude his
prior Massachusetts conviction foroperating under the influence of intoxicating
liquor (OUI); (2) denying his motion to dismiss the charges for insufficient evidence; (3)
denying his motion to set aside the reckless conduct verdict because his car was not a
deadly weapon; and (4) denying his motion to set aside the reckless conduct verdict on
double jeopardy grounds. We affirm.

The jury could have found the following facts. While driving on the Charles Bancroft
Highway on April 22, 2001, the defendant struck Litchfield Police Officer Paul Paquette,
from behind, with the mirror of his Ford pickup truck. The contact occurredwhile
the officer was issuing a speeding ticket to another driver. The other driver heard the
defendants truck hit the officer, saw the officer holding his shoulder as the truck
tail lights passed, and heard the officer say he had been hit by the truck. The officer
then called another unit to report he had been struck by a Ford pickup truck and pursued
the truck to issue a citation.

Officer Paquette pulled the truck over approximately one mile from the spot where he
hadstopped the first driver for speeding. The officer told the defendant he had
struck him with his truck and asked the defendant for his license and registration. The
officer smelled a distinct odor of alcohol on the defendants breath and noticed that
he slurred his speech. When the officer asked the defendant how much he had to drink hereplied that he had not been drinking. The officer then asked the defendant to perform
field sobriety tests (FST), to which the defendant agreed.

By the time the defendant got out of the truck, Officer Dwyer had arrived. Both
officers smelled alcohol on the defendant and observed thathis eyes were red and
bloodshot, his speech was slurred, he was unsteady on his feet, and he swayed as he tried
to stand still. The defendant performed poorly on the walk-and-turn and the one-legged
stand FSTs. Officer Paquette then read the defendant his administrative license suspension
rights (ALS) and requested that he take a breathalyzer test. The defendant refused and
Officer Paquette arrested him for drunk driving.

While Officer Paquette took the defendant to the station, Officer Dwyer stayed with the
defendants truck until the tow truck came. While he was waiting, he examined the
passenger side mirror and found that it was pushed in toward the vehicle, had fresh
scuff-marks and wasmissing the dirt that covered the rest of the truck.

The defendant had a 1999 DUI conviction in New Hampshire and a 1995 OUI conviction in
Massachusetts. Prior to trial, the defendant moved inlimine to exclude
evidence of his OUI conviction in Massachusetts, arguing it was not a "reasonably
equivalent offense" to the New Hampshire DUI offense. See RSA 265:82-b, II.
The trial court denied the defendants motion. At trial, the defendant moved to
dismiss both indictments at the close of the States case. The trial court denied
this motion too, finding that the evidence on each charge was sufficient to be submitted
to the jury. After trial, the jury returned a guilty verdict on each indictment, which the
defendant moved to set aside for violating double jeopardy and for being based upon
insufficient evidence. Once again, the trial court denied these motions. This appeal
followed.

I. Denial of Motion in Limine

The defendant argues the trial court should have excluded his prior Massachusetts
conviction.

RSA 265:82-b, II provides:

Upon conviction of any offense under RSA 215-A:11, RSA 265:82, or RSA 265:82-a, based
on a complaint which alleged that the person has had one or more prior convictions under
[those statutes], or RSA 630:3, II, or under reasonably equivalent offenses in an
out-of-state jurisdiction, within 10 years . . . , the person shall be subject to the
following penalties . . . :

(a) For a second offense:

(1) The person shall be guilty of a misdemeanor.

(2) The person shall be fined not less than $500.

(3) The person shall be sentenced to a mandatory sentence of not less than 10
consecutive days . . . in the county correctional facility . . . .

. . . .

(b) For a third offense, any person convicted under this paragraph shall be subject to
all the penalties of subparagraph (a) except that:

(1) The persons drivers license or privilege to drive shall be revoked
indefinitely and shall not be restored for at least 5 years.

. . .

(Emphasis added.) The defendant argues that because the New Hampshire and Massachusetts
offenses have different elements of proof and are subject to significantly different
punishments, they are not "reasonably equivalent" under RSA 265:82-b, II.

We are the final arbiter of the legislatures intent as it is expressed in the
words of a statute considered as a whole. State v. Rollins-Ercolino, 149 N.H. ___,
___ (decided April 18, 2003). Our task is to construe the Criminal Code provisions
according to the fair import of their terms and to promote justice. Id. In doing
so, we first look to the plain language of the statute to determine legislative intent. Id.
When the statutory language is subject to more than one reasonable interpretation, we
examine the nature of the offense and the policy considerations for punishing the conduct
in question. Id.

Neither the legislature nor this court hasdefined what constitutes a
"reasonably equivalent offense" for sentencing purposes under our Criminal or
Motor Vehicle Codes. In a different context, the department of safety has adopted a test
of "making a comparison of the elements of the New Hampshire statute to the elements
of the other jurisdictions statute. The text of the elements of the law of the other
jurisdiction shall be analogous but not necessarily exactly the same as the elements of
the statutes [in New Hampshire]." N.H. Admin. Rules, Saf-C 5502.01
(registration of sexual offenders).

While the tests applied in other jurisdictions differ,one commonfactor
is whether the evidence required to sustain a conviction for the out-of-state
jurisdictions offense would necessarily sustain a conviction under the home
states statute. If the answer to this question is "yes," the offense is an
"equivalent offense" for sentencing enhancement purposes. See, e.g.,
Corbett, 663 N.E.2d at 263; Walter, 391 N.W.2d at 160. If the answer to this
question is "no," the offenses are not "equivalent." See, e.g.,
Shaw, 744 A.2d at 744-45; Cox, 411 S.E.2d at 446. The language of the
elements of the statutes need not be identical, because the purpose of subsequent offender
laws is to prohibit and punish a specific type of recurring conduct by imposing an
enhanced sentence. Cf. State v. Cardin, 129 N.H. 137, 138 (1987). The prior
offense is not an additional element of the present charge. Seeid.

We find the rationale applied in other States to be persuasive and consistent with the
test articulated by the department of safety. Accordingly, we will look to the elements of
the New Hampshire and Massachusetts offenses to determine if they are reasonably
equivalent offenses for sentence enhancement under RSA 265:82-b.

The New Hampshire DUI statute, under which the defendant was indicted, provides:

I. No person shall drive or attempt to drive a vehicle upon any way:

(a) While such person is under the influence of intoxicating liquor . . . .

RSA 265:82, I(a). The Massachusetts OUI statute, under which the defendant was
convicted in 1995, provides:

(1) (a) (1) Whoever, upon any way . . . operates a motor vehicle while under the
influence of intoxicating liquor . . . shall be punished by a fine of not less than five
hundred nor more than five thousand dollars or by imprisonment for not more than two and
one-half years, or both such fine and imprisonment.

Mass. Gen. Laws Ann. ch. 90, § 24 (1) (a) (1) (West 2001).

To convict the defendant in Massachusetts, the Commonwealth was required to prove
beyond a reasonable doubt that the defendant: (1) operated a motor vehicle; (2) on any
way; (3) while under the influence of intoxicating liquor. SeeCorbett, 663
N.E.2d at 263. Likewise, in New Hampshire, the provision under which the defendant was
indicted required the State to prove beyond a reasonable doubt that the defendant: (1)
drove or attempted to drive a vehicle; (2) on any way; (3) while under the influence of
intoxicating liquor. SeeState v. Tarantino, 140 N.H. 523, 524 (1995). The
only difference between these provisions is in the language "operates a motor
vehicle," see Mass. Gen. Laws Ann. ch. 90, § 24 (1) (a) (1), and "drive
a vehicle," see RSA 265:82, I.

Our legislature has defined "Driv[ing], in all its moods and tenses,
[to] mean to operate or be in actual physical control of a motor vehicle . . . ." RSA
259:24 (1993). Similarly, the Massachusetts Supreme Judicial Court includes "the
driving of the vehicle" as one of the ways to "operate" a motor vehicle
under Mass. Gen. Laws Ann. ch. 90, § 24. SeeCom. v. Ginnetti, 508 N.E.2d
603, 604 (Mass. 1987). Each definition encompasses its counterpart within its terms. We
have never drawn a distinction between the terms "operate" and "drive"
for purposes of sentencing for subsequent offenses under our DUIstatutes. SeeState v. Martel, 124 N.H. 544, 545 (1984). We see no need to do so now.

While the defendant attempts to make other distinctions between the Massachusetts and
New Hampshire statutes, we find them to be distinctions that make no difference because of
the statuteunder which the defendant was charged. Our statute recognizes two
distinct offenses. See RSA 265:82 (1993 & Supp. 2002). The first, with which
the defendant is charged, is driving under the influence of alcohol or drugs. See
RSA 265:82, I(a). The second is driving with an excess alcohol concentration. See
RSA 265:82, I(b) (Supp. 2002). Because the defendant is not charged with driving with an
excess alcohol concentration, we need not decide whether the Massachusetts OUI offense is
reasonably equivalent to that offense.

Likewise, thata first offense in Massachusetts isa misdemeanor, but in
New Hampshire a violation, doesnot affect our analysis. SeeCom. v.
Valiton, 737 N.E.2d 1257, 1263 (Mass. 2000); Corbett, 663 N.E.2d at 263; seealsoCardin, 129 N.H. at 138. The punishment imposed for the earlier offense
and its classification under the Criminal Code do not affect the ultimate issue, which is
whether the prohibited criminal conduct actually occurred for a third time. SeeCorbett,
663 N.E.2d at 263.

In sum, we find that the conduct for which the defendant was convicted in Massachusetts
would necessarily sustain a conviction for DUIhere. Therefore, we hold that these
two statutes constitute "reasonably equivalent offenses" for sentencing purposes
and the trial court properly denied the defendants motion inlimine.

II. Sufficiency of the Evidence

The defendant next argues that the trial court erred in denying his motion to dismiss
the indictments at the close of the States case and in failing to set aside the jury
verdict based upon sufficiency of the evidence. Because the defendant chose to present a
case after unsuccessfully moving to dismiss, however, the issue on appeal as to both
motions is the sufficiency of the evidence and we review the entire trial record to make
that determination. SeeState v. Pittera, 139 N.H. 257, 260 (1994).

The defendants appeal raises two separate sufficiency arguments. First, he argues
that the State failed to present evidence of intoxication to support the DUIconviction.
Second, he argues that the State failed to prove he acted in a reckless manner, or even
that he was driving the vehicle that hit Officer Paquette, to support the felony reckless
conduct indictment.

To prevail on a challenge to the sufficiency of the evidence, the defendant must prove
that no rational fact finder at trial, viewing all of the evidence presented in the light
most favorable to the State, could have found guilt beyond a reasonable doubt. State v.
Looney, 148 N.H. 656, 657 (2002). When the challenged evidence of an element of the
charged offense is circumstantial, the evidence must exclude all rational conclusions
except guilt. Id. Under this standard, however, we still consider the evidence in
the light most favorable to the State, and we examine each evidentiary item in the context
of all of the evidence, not in isolation. Id.

Reviewing the trial record, we hold that a rational fact finder viewing the evidence in
the light most favorable to the State could have found beyond a reasonable doubt that the
defendant was intoxicated. In addition to thetestimony oftwo police
officers that the defendant smelled of alcohol, had slurred speech, blood shot eyes,
swayed while standing, and performed poorly on field sobriety tests, the State presented
testimony that the defendant refused to take a blood alcohol test. See RSA 265:88-a
(1993). While the defendant testified that he was not intoxicated and performed well on
the field sobriety tests, he also testified that he had three beers that evening. The jury
was free to accept or reject any portion of this testimony in their deliberations. SeeState v. Baker, 135 N.H. 447, 450 (1992). When there is conflicting factual
testimony, we defer to the findings of the jury unless no reasonable person could have
come to the same conclusion. Id.

To achieve a conviction for reckless conduct, the State was required to prove the
defendant "recklessly engaged in conduct which placed or may have placed another in
danger of serious bodily injury. The defendant committed this crime by driving a vehicle .
. . too close to Paul Paquette and, in so doing, striking Paul Paquette with part of the
vehicle." The State also had to provebeyond a reasonable doubt that "the
defendant was aware of and consciously disregarded a substantial and unjustifiable risk
that serious bodily injury would result from the charged conduct." State v. McCabe,
145 N.H. 686, 689 (2001) (quotation and brackets omitted). The defendant argues that there
was no evidence that he was driving the vehicle that struck Officer Paquette or that he
acted in a reckless manner. We disagree.

Both Officer Paquette and the independent motorist testified that a vehicle hit Officer
Paquette from behind as he was issuing the driver a ticket. The record further reflects
that, while other traffic was on the road, a Ford truck was the vehicle in the immediate
area driving away from the scene. Indeed, even the defendant testified that as he
approached, he saw the police officer with a vehicle pulled over and he had to move his
vehicle into oncoming traffic to get around the officers cruiser. The record shows
that Officer Paquette immediately pursued the defendants truck, stopping it within a
mile of his initial traffic stop. Finally, Officer Dwyer testified that the
defendants exterior truck mirror, which extended away from the trucks body,
was pushed inward and wiped clean of the dirt covering the rest of the vehicle, consistent
with being hit or pushed against an object.

Althoughthis evidence is circumstantial, when examined with all of the evidence
and in the light most favorable to the State, the evidence excludes all rational
conclusionsexceptthat the defendant was driving the vehicle that struck
Officer Paquette. Cf. Tarantino, 140 N.H. at 524-25.

To prove the defendant acted in a reckless manner, the State had to show that the
defendant was aware of but consciously disregarded a substantial, unjustifiable risk that
serious bodily injury would result from his conduct. SeeMcCabe, 145 N.H. at
689. In addition, the State had to show that the defendants disregard for the risk
of injury to another was a gross deviation from the regard that would be given by a
law-abiding citizen. SeeState v. Evans, 134 N.H. 378, 385 (1991).

This is a subjective inquiry. Id. It does not depend upon the actual harm
resulting from the defendants conduct. Id. at 385-86. Nor does it depend upon
whether the defendant anticipated the precise risk or injury that resulted. Id. at
386. Rather, the jury had to find that the defendants driving too close to a police
officer engaged in a traffic stop involved a substantial and unjustifiable risk of injury
to either Officer Paquette or the driver of the other vehicle. Seeid. Then
the jury had to find that the defendants conduct in creating that risk was a gross
deviation from that of a law-abiding person, because that person would not have driven so
close to the officer. Because determination of the defendants awareness is a
subjective inquiry, it may be proven by any surrounding facts and circumstances from which
such awareness may be inferred. Seeid. at 387. The jury could have
considered the defendants conduct before and after the accident, including his
testimony that he had been drinking. Seeid. The jury also could have
disregarded any explanation given for his conduct if they questioned the defendants
credibility. Seeid.

A rational jury could conclude from the evidence that the defendantsconduct
was a gross deviation from that of a law-abiding citizen, because a law-abiding citizen
would have waited for traffic to pass to avoid driving too close to a police officer
engaged in a traffic stop. Likewise, a rational jury could conclude that driving too close
to a police officer engaged in a traffic stop created a substantial, unjustifiable risk of
injury to either the police officer or the other driver. Cf. State v. Pelky,
131 N.H. 715, 719 (1989) (finding that indictment stating a defendant drove car too close
to fog line, hit bicyclist riding near fog line, and caused bicyclist bodily injuries
adequately stated element of recklessness for second degree assault). Finally, a rational
jury could conclude that if the defendant was unaware of the risk he created, it was due
to his own voluntary intoxication. See RSA 626:2, II (c) (1996). Accordingly, we
hold that the trial court properly denied the defendants motions to dismiss and to
set aside the verdict.

III. Denial of Motion to Set Aside Reckless Conduct Verdict Based Upon Use of
Automobile as a Dangerous Weapon

The defendant next argues that there was no proof beyond a reasonable doubt that he
used his vehicle in a manner that would cause it to become a deadly weapon. "Reckless
conduct is a class B felony if the person uses a deadly weapon as defined in RSA 625:11,
V. All other reckless conduct is a misdemeanor." RSA 631:3, II (1996). The defendant
argues that the trial courts denial of his motion to set aside the felony reckless
conduct verdict makes any reckless driver of a vehicle guilty of felony reckless conduct.

A deadly weapon as defined in RSA 625:11, V (1996) is "any firearm, knife or other
substance or thing which, in the manner it is used, intended to be used, or threatened to
be used, is known to be capable of producing death or serious bodily injury." The
critical phrase is "the manner [in which an object] is used, intended to be used, or
threatened to be used, [it] is known to be capable of producing death or serious bodily
injury." Many innocuous everyday objects become deadly weapons when they are put to
assaultive uses. It is only the specific manner of use and the circumstances surrounding
that use that make such everyday objects capable of producing death or serious bodily
injury. See, e.g., In re Justin D., 144 N.H. 450 (1999) (multiple
rolls of reinforced coins become dangerous weapons when swung at someones head); State
v. Kiluk, 120 N.H. 1 (1980) (dinner fork becomes a deadly weapon when it is used to
stab someone in the eye); State v. Piper, 117 N.H. 64 (1977) (belt buckle becomes
dangerous weapon when blade is attached and it is swung at someone). For this reason, the
issue is factual and must be resolved by a jury.

Furthermore, whether a motor vehicle driven in a reckless manner is a deadly weapon is
a question of fact for the jury based upon the totality of the circumstances. We have
never required that an object be intrinsically capable of causing death or injury. Cf.
State v. Hatt, 144 N.H. 246, 247-48 (1999). Nor have we required that an object
actually cause death or injury. Cf. id. Not all persons who drive recklessly
under RSA 265:79 (1993) are necessarily guilty of using their automobile as a deadly
weapon. For example, when finding that a defendant did not use his truck as a deadly
weapon while committing a felony driving while intoxicated offense on an empty highway,
the Texas Court of Appealsexplained:

To determine whether in the manner of its use or intended use [the defendants]
truck was "capable" of causing death or serious bodily injury, that
"capability" must be evaluated in light of the facts that actually existed while
the [crime] was committed. In other words, the "capability" must be evaluated in
light of what did happen rather than the conjecture about what might have happened
if the facts had been different than they were.

In contrast to the defendant in Williams, the defendant in the instant case
drove his truck so close to a police officer engaged in a traffic stop that he hit the
police officer in the shoulder. Additionally, the defendant testified that he drove into
oncoming traffic to go around the police car. Finally, the jury found that the defendant
was driving while intoxicated. Under these circumstances, we hold that a reasonable jury
could find that the defendants truck, in the manner in which it was used, was known
to be capable of causing death or serious bodily injury to Officer Paquette, to the driver
already pulled over or even to the occupants of oncoming vehicles. Cf. Davis v.
State, 964 S.W.2d 352, 354 (Tex. Ct. App. 1998).

IV. Denial of Motion to Set Aside Reckless Conduct Verdict Based Upon Double Jeopardy

Finally, the defendant argues that his two convictions violate double jeopardy under
the State Constitution, see N.H. CONST., pt. I, art. 16, because the State required
the same evidence to prove the DUI and reckless conduct charges in this case. The
defendant argues the trial court erroneously applied the rationale of State v. MacLeod,
141 N.H. 427, 429 (1996), in denying his motion to set aside the felony reckless conduct
verdict. We confine our analysis to the State Constitution because the defendant makes no
federal constitutional claim. SeeState v. McKean, 147 N.H. 198, 199-200
(2001).

The double jeopardy clause of the New Hampshire Constitution protects a defendant from
multiple punishments for the same offense. Two offenses will be considered the same unless
each requires proof of an element that the other does not. Thus, multiple indictments are
permissible only if proof of the elements of the crimes ascharged will in
actuality require a difference in evidence. The ultimate question is whether the facts
charged in the second indictment, would, if true, have sustained the first. As these
formulations of the relevant inquiry make clear, we review and compare the statutory
elements of the charged offenses in light of the actual allegations contained in the
indictments.

Id. at 429 (citations and quotations omitted). The trial court properly looked to
this standard when addressing the defendants motion.

Applying the principles from MacLeod, we conclude that proof of the elements of
the crimes as charged require different evidence in actuality as well. The statutory
offense of DUI, read in light of the applicable indictment, required the State to prove
that the defendant, while under the influence of intoxicating liquor, drove a vehicle on a
way known as the Charles Bancroft Highway in Litchfield. See RSA 265:82, I (a). The
felony reckless conduct statute, read in light of the applicable indictment, required the
State to prove that the defendant recklessly engaged in conduct which placed another in
danger of serious bodily injury, and that he did so by driving a vehicle too close to
Officer Paquette, striking Officer Paquette with part of the vehicle. See RSA
631:3.

Proof of the elements of either of these crimes as charged could not sustain a
conviction on the elements of the other crime. The DUI indictment required evidence of
intoxication to sustain a conviction; the reckless conduct indictment did not. The
reckless conduct indictment required proof that the defendant drove his truck too close to
Officer Paquette and that he struck the officer with his truck; the DUI indictment did
not. While the State may have used evidence of the defendants intoxication to prove
recklessness and may have used evidence of the defendant driving too close to the police
officer to prove intoxication, such evidence was not required to prove the elements of the
indictments as charged. SeeMacLeod, 141 N.H. at 429-30.

It does not matter how overlapping, reciprocal, or similar the evidence used to sustain
the indictments was if a difference in evidence is actually required to prove the crime
charged. SeeMcKean, 147 N.H. at 201-02. For the same reason, it does not
matter that the two charges arose out of the same transaction. Seeid. The
evidence required to prove the DUI indictment could not have sustained the reckless
conduct indictment as charged. Therefore, we hold that the defendants convictions
for the two offenses as charged do not offend double jeopardy.